Judge says Boy Scouts had duty by law to protect girls in program

The Boy Scouts of America will admit girls into the Cub Scouts starting next year and establish a new program for older girls based on the Boy Scout curriculum that enables them to aspire to the coveted Eagle Scout rank. (Oct. 11)
AP

A Montana judge has made a pre-trial ruling in a sexual abuse case filed against the Boy Scouts of America that says the organization had a duty as a matter of law to protect girls in its co-ed Explorer program from a foreseeable risk of sexual assault, an attorney representing the plaintiffs said Monday.

The ruling, made in Helena on Thursday by District Court Judge James Reynolds, also said that an “ineligible volunteer” file, which the lawsuit claims the organization also called the “Perversion Files,” of 900 accused child molesters nationwide kept by the Boy Scouts of America would be admissible in this case, said Gilion Dumas, attorney with the Portland, Ore.-based Dumas Law Group.

“The jury will be able to see the BSA’s own historical record of sex abuse in Scouting,” Dumas said.

She said the rulings to affirm 11 pre-trial orders were “key” to her case and were issued earlier by Judge Jeffrey Sherlock, who acted as Special Master.

Attorneys representing the defendants — the Boy Scouts of America and the nonprofit Montana Council, Boy Scouts of America — were not immediately available for comment.

The plaintiffs are seeking punitive damages that can be capped at $10 million each, Dumas said.

The case involves six female plaintiffs, listed by initials in the lawsuit, who were between the ages of 11 and 14 when they were members of the Explorer Post in Kalispell when they were sexually assaulted in the 1970s by adult scout leader William H. Leininger Jr.

The trial is scheduled to be heard Nov. 27 in Montana’s 8th Judicial District in Great Falls, following a Nov. 2 mediation.

Dumas said the case involves a fraud claim based on the theory that Boy Scouts deceived the plaintiffs and their parents by telling them that Scout leaders were trustworthy and of “high moral character” and, at the same time, concealing the danger of child sex abuse that the Boy Scouts knew about through the files they created on men kicked out of Scouting for sexually molesting children.

Dumas said this is the first time a fraud claim against the Boy Scouts has gone to a jury.

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Attorneys Matthew Theil, left, Gilion Dumas, center, and Kelly Clark address the media during a 2011 press conference in Great Falls, Mont., where they announce a civil lawsuit against the Montana Council of the Boy Scouts of America on behalf of adult women who were sexually abused as children.(Photo: RION SANDERS, GREAT FALLS TRIBUNE File photo)

The abuse, according to court documents, took place while Leininger, a Scout volunteer and adult leader, was supervising plaintiffs on Scout camping trips. The lawsuit states he was convicted of rape and died while in prison.

The lawsuit states that on Jan. 21, 1971, the Boy Scouts of America approved a membership for girls 15-20. Explorers are for boys and girls.

The court case was filed in 2011. Montana law allows people to bring sex abuse cases when they are adults, Dumas said.

She said she was pleased with the judge’s ruling, adding it would allow the trial to move forward and let these women “right a wrong in their childhood and finally get justice.”

On Oct. 12, the Boy Scouts of America announced it would expand girls participation into the Cub Scouts starting next year and establish a new program for older girls based on the Boy Scout curriculum that allows them to get the rank of Eagle Scout.

In a separate case, the Boy Scouts of America and Montana are facing similar allegations filed in 2014.

In the case, four men from Roundup allege the Boy Scouts organizations of negligence in hiring practices when Calvin Malone was made their scout leader and given carte blanche over the vulnerable scouts. The four men, now living in different places across the county, say they were raped by Malone during their time in the program.

Malone was later convicted in Washington State of first-degree rape of a child in 1993 and two counts of child molestation in the first degree.

The civil complaint does not indicate when the abuse in Roundup took place but alleges that from at least the 1960s, the Scouts organization knew that leadership and supervisory positions were being used by predatory child molesters to gain access to children.

Unlike the abuser in the Kalispell case, Malone, in his mid-60s, is still alive and being held indefinitely at Washington State’s Special Commitment Center on McNeil Island.

In September, attorneys for the Boy Scouts filed a motion requesting the judge allow them to file a complaint against Malone, essentially stating he should be responsible for any damages for which the Boy Scout organizations are found liable.

“There can be no doubt that without Malone’s independent, intentional, and unsanctioned criminal sexual abuse, this case and (the victims)’s claims against the (Boy Scouts organizations) would not exist,” attorneys wrote in the motion.

In their response, attorneys for the victims called the request “absurd” and the latest ploy by the defendants to “prolong litigation, delay trial, and evade justice.”

Judge James Manley, a Lake County judge presiding over the case, has scheduled a hearing in December for arguments on the Boy Scouts organization’s request to file a complaint against Malone. The trial is currently scheduled for summer in 2018.

Jim Edmiston, a Billings lawyer representing the Roundup victims, said his firm may also seek to use the “Perversion Files” allowed by Judge Reynolds in the Kalispell case.